Neutral Citation no.  [1999] 1887

Ref:    

MCCE2749

 

 

 

Judgment: approved by the Court for handing down

Delivered:

05/02/99

(subject to editorial corrections)

 

 

 

            IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                           QUEEN'S BENCH DIVISION

 

                                                                -----------

 

BETWEEN:

 

                                    WILLIAM CHRISTOPHER MULLAN

                                                                                                                             Plaintiff;

 

                                                                   and

 

 

                                             OMAGH MEATS LIMITED

                                                                                                                        Defendant.

 

                                                               ------------

 

McCOLLUM LJ

 

            The plaintiff sues the defendant, his former employer, for an alleged injury sustained by him during the course of his employment.  The defendant operates a meat plant at Doogary Road, Omagh, County Tyrone and employed the plaintiff there between the months of March 1991 and April 1993.  The plaintiff was born on 30 December 1967 and was 23 when he commenced that employment.

            Prior to 1987 the plaintiff had suffered from recurrent pneumothorax or collapse of the lung for which he underwent a surgical operation called a pleurectomy in 1987, being discharged from hospital on 6 August 1987.  That operation requires entry to the chest cavity which in this case was facilitated by an incision along the border of and below the area of the right shoulderblade.  The operation was successful and, in such an event, a full recovery is to be expected.

            Mr McGuigan FRCS, called as a medical witness on behalf of the plaintiff, said that in the normal course he would not advise patients after pleurectomy to avoid heavy lifting in the long-term although he would recommend care during a recovery period of some months. 

            The plaintiff was issued with a blue card as a disabled person, although on the medical evidence it is not clear to me what particular disabilities he may have been thought to have.

            It appears from his application for employment with the defendant that he had worked in a butcher's shop from 1986 until March 1990. 

            The plaintiff's evidence about what occurred at his job interview differs from that of Mr McCann, who conducted the interview on behalf of the defendant.  The plaintiff said he showed the blue card and explained why he had it and told about the operation in 1987 and said that he had the blue card so that he did not have to do any heavy physical work.  Mr McCann said that the plaintiff did not give any indication of any difficulty in lifting type jobs and that he would not have employed him if he had not been capable of doing the job.  In the meat plant there was a lot of lifting and pushing, it was a very heavy job; but in the department where the plaintiff was employed it was not so laborious.

            I prefer Mr McCann's evidence on this issue although it is a little strange that he did not explore the nature or extent of the incapacity which might be indicated by the plaintiff's possession of a blue card. 

            According to the plaintiff he had no problems until the summer of 1992 when a new system was introduced in the department in which he was employed.  His job was, as a trimmer, to separate fat from scraps or off-cuts of meat left over from the boning process.  Prior to summer of 1992 the meat arrived in a plastic tray.  He carried it from its point of arrival to a table at which he trimmed off the fat.  The fat was put in a wheelie bin and eventually emptied down into a chute which descended from a hole in the floor, and the meat was put in another plastic tray and placed on a conveyor belt.

            The new system involved the delivery of the meat to be trimmed on a conveyor belt onto the working table at which two operators worked.  The trimmed fat was placed in plastic trays and emptied into the chute for which a funnel had been constructed to a height of about 2 foot 6 inches.  The trimmed meat was placed in a plastic tray and carried to another table where it was packed in plastic bags.  The amount of trimmed meat to be carried on any one trip to the packing table was determined by the practice of the operator carrying it.

            According to the plaintiff, the new system involved more strenuous work than the old system and greater distances had to be covered, but having heard his evidence and the evidence of Mr McCann and Mr McDermott for the defendant, I am satisfied that the new system was no more strenuous than the old one.  Indeed, as I pointed out to the plaintiff in the course of his evidence, while under the old system the workman had to carry a tray of meat that had been loaded by someone else; under the later system he could choose the quantity which he was prepared to carry to the packing table.

            The plaintiff said that after the first 2 or 3 months of this work his shoulder started to get very sore especially at night when he went home.  At the end of 1992 he went to his doctor, he had an awful lot of pain in his shoulder.  He went to get painkillers and told the doctor that his shoulder was getting very sore.  He said that after November 1992 he mentioned at work that his shoulder was getting very sore and that the work was getting too much for him and asked if there was any chance of a break or a change to another job.  However, he said he was told by Mr Maxwell Patten that there were no other jobs available and for the time being he would have to stay at what he was doing.

            On 19 April 1993, while he was working at his usual job, he lifted a tray of trimmings and took it to the packing table.  The packers were slightly behind and he had to lift the tray higher because of the pile of meat on the table.  As he lifted it he felt an awful sharp pain, like a tearing sensation, he dropped the tray and informed Maxie Patten.  He didn't know if the accident was entered in any accident book and he went to his general practitioner on that day who certified him as unfit for work and referred him for surgical attention.

            The plaintiff's general practitioner at the time, Dr Fox, has been unwell and has not been able to attend court, but his notes were produced by agreement.  His notes show that on 16 September 1991 the plaintiff complained of having hurt his back at work lifting a 25kg tray from a ledge.  On 3 November 1992 he attended complaining of pain at the upper end of his pleurectomy scar and had what the doctor recorded as a musculo-skeletal injury.  He also had pain in a finger and this merited some treatment by what is called a neighbour-strap. 

            The record for 19 April 1993 records the following:

                        "Bother in right shoulder girdle off and on 6 years since chest operation.  Worse last year or so.  Bad today."

 

            The plaintiff is an articulate person and I am satisfied, had he suffered a sudden injury or onset of pain as a result of an incident at work, that he would have been able to make that perfectly clear to the doctor, and I am satisfied from the quality of the doctor's notes that that would have been accurately recorded.

            The nature of the trouble with the plaintiff's shoulder required quite a degree of investigation and in December 1994 the plaintiff was admitted to Musgrave Park Hospital under the care of Mr McCoy FRCS.  His account to Mr McCoy on 1 September 1995 was that when lifting a heavy tray of fat he felt a tearing sensation over his scapula.  Surgical exploration identified that he had dehiscence of the muscular attachments to the medial border of his scapula.  The muscle was re-attached and in Mr McCoy's view the plaintiff made an excellent functional recovery from the operation, although he may not be fit for the more physically challenging occupations.

            It appears that the type of lesion suffered by the plaintiff is a most unusual one.  Mr McCoy stated in cross-examination that he had never seen the injury before or since and Mr McGuigan, the thoracic surgeon, said that this is the only case which he was aware in which there had been a long-term difficulty following an incision to carry out a pleurectomy.

            The muscles affected serve the purpose of providing stability for the shoulder blade.  Mr McCoy felt that injury to them in a fall was only likely through a pulling movement on the outstretched arm.  Mr McCoy took the view that in theory that kind of injury could be caused by lifting but the fact remains that as the case is presented to me no other case of such an injury having been caused by lifting has been cited to me; either in the experience of the medical witnesses or from medical literature.

            The history given to Mr McCoy was of complete recovery from the original operation followed by a sudden onset of pain when carrying out a lifting operation and this must have influenced Mr McCoy towards the view expressed in his reports that the injury was caused by lifting a heavy tray.  However, it appears to me that if he had been given the history contained in Dr Fox's notes for 19 April 1993 which relates the onset of the shoulder trouble to the chest operation it is likely that he would have taken a different view.

            Having considered all the evidence and paying due respect to the view of the Mr McCoy my conclusion is that the most likely cause of the dehiscence of the muscle is that it arose as a result of the operation.

            I am satisfied that if there had been any sudden tearing of muscle or the unexpected onset of pain that the plaintiff would have reported this to his supervisor or the manager and would have described it in such a way to Dr Fox that it would have been recorded in the doctor's notes.  I also regard it as significant that in his sickness self-certificate the plaintiff failed to tick the box which indicates that the form of sickness described is thought to be due to an accident at work.

            The plaintiff's failure to so categorise the condition is made even more significant by the fact that in his evidence he complained that he had had difficulty for some time dealing with unduly heavy lifts, which, if true, would have directed his mind even more firmly to the issue of an accident at work.  The same consideration negates the probability of the plaintiff complaining to Mr Patten about having difficulty with his work.

            I conclude, therefore, that the plaintiff did have problems with his right shoulder, aggravated by the fact that his work was strenuous.  I am not satisfied that the weight of the trays was the only factor, but rather that repeated movement caused strain to an already existing lesion, contributed to further by having to carry the trays.

            Unfortunately Mr McKeown, the consulting engineer, was not given the opportunity of seeing in operation the system under which the plaintiff worked.  A tray was provided with a quantity of meat in it which he weighed at a total of 29.3kg or 64½lbs.  Mr Patten, who gave evidence for the defendants felt that the weight of the trays would normally have been 15 to 20kgs when they contained fat and 20 to 25kgs when they contained trimmings.  Mr McDermott, the supervisor, felt that the respective weights were about 30lbs and 50lbs.  I would be surprised if the employees had habitually allowed the trays to become loaded to the extent of the tray in the photograph and accept the reasonableness of the estimates of the defendant's witnesses.

            The plaintiff is in appearance a sturdy young individual and, in the absence of any indication by him at interview, it was in my opinion reasonable for his employer to regard him as perfectly fit to carry the kind of loads that his work required.  I am satisfied that he did not make any complaints during the course of his employment so as to draw his employer's attention to any difficulty that he was experiencing and accordingly I take the view that the defendant was not guilty of negligence.

            I am not satisfied that the loads carried by the plaintiff could be described as "so heavy as to be likely to cause injury to him" and accordingly there has been no breach of Section 71 of the Factories Act (Northern Ireland) 1965.

            The plaintiff also relied on the provisions of the Manual Handling Operations Regulations (Northern Ireland) 1992 which came into force on 8 January 1993.  Regulation 4 sets out the duties of employers as follows:

                        "4-(1)   Each employer shall -

 

                        (a)        so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

 

                        (b)       where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -

 

                                    (i)        make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 and considering the questions which are specified opposite thereto in column 2 of that Schedule.

 

                                    (ii)       take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual  handling operations to the lowest level reasonably practicable, and

 

                                    (iii)      take appropriate steps to provide any of those employers who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on -

 

                                                (aa)      the weight of each load, and

 

                                                (bb)     the heaviest side of any load whose centre of gravity is not positioned centrally."

 

            No evidence was adduced before me as to whether it was reasonably practicable to avoid the need for employees to undertake manual handling operations at the work in which the plaintiff was engaged, nor did the defendant direct any argument as to what might constitute a risk of injury in connection with handling operations.  I do not know if the defendant considered the question of risk of injury or whether they concluded that there was no such a risk.  No evidence was given before me that any assessment had been made by the defendant under Regulation 4(1)(b). 

            Neither counsel entered into any analysis of the full import of this Regulation nor was I referred to any authority on its interpretation.

            Paragraph 6.8 of Redgrave's Health and Safety, Third Edition refers to a number of authorities, including Anderson v Lothian Health Board 1996 EWD 27-1625 OH in which it was held that "for there to be a risk of injury, injury may be no more than a reasonable possibility, it need not be a probability".

            When considering the Regulation in the light of the consultative document published prior to the making of the Regulations it appears to me as a practical proposition for the purposes of this case in which the loads presented no particular difficulty of the nature of those set out in Schedule 1 to the Regulations that "risk of injury" is foreseeable in the range from 16kgs to 34kgs which in the view expressed by the consultative document "required administrative procedures to identify those individuals unable to handle such weights regularly without unacceptable risk unless mechanical assistance is provided", and that when loads in that range require to be handled the Regulation applies to such operations.

            In my view, on the passing of the Regulations, some enquiry was required by the defendant to assess the manual handling operations being carried on.  This would have required consideration whether the need for manual handling could be avoided altogether, and whether the work might have created a hazard to those with a health problem.  The defendant was also required to take appropriate steps to reduce the risk of injury under Article 4(1)(b)(ii).

            It appears to me that the onus of proof is on an employer to satisfy the Court that he has complied with the requirements of Regulation 4 and in the absence of any evidence of compliance I must conclude that there has been a breach of Article 4 of the Regulations. 

            As I have already indicated I have come to the conclusion that the plaintiff's original injury dated from the operation and I am not satisfied that it was physically affected, in the nature of initial or any added damage to tissue, by his work, but that his symptoms were aggravated by his work.

            However, the plaintiff did have a blue card, which should have put the defendant on notice in the light of the Regulations that he was potentially at risk, and it is probable, in view of the state of the plaintiff's shoulder in April 1993 that if he had had a medical examination in early 1993, or even if the defendant had made enquiry from him personally at that time that his difficulties would have come to light.

            There is no evidence that it was not reasonably practicable for the handling of the trays to be eliminated by mechanising the operation.

            Therefore some part of the discomfort suffered by the plaintiff between January and April 1993 was caused by the defendant's breach of duty under the 1992 Regulations.

            The issue of damages is a difficult one.

            The plaintiff is entitled to recover for such symptomatic aggravation as his work from January to April caused during that period and such residual aggravation as followed.

            I accept that if he had continued working the condition of his shoulder would eventually have created difficulties for him, even if all manual handling of loads had been eliminated and damages are therefore limited.

            Moreover, some aggravation would already have been caused before the Regulations came into effect although he seems to have been still capable of carrying out all his duties in January 1993.  I assess compensation for general damages at £4,000.

            It is probable that he could have postponed leaving work for a number of months if he had been able to work without the requirement of moving the trays.  I assess this period at about 6 months and therefore allow him loss of earnings for 26 weeks at £118.51 per week, a total of £3,081.26.


            IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                           QUEEN'S BENCH DIVISION

 

 

                                                                -----------

 

BETWEEN:

 

                                    WILLIAM CHRISTOPHER MULLAN

                                                                                                                             Plaintiff;

 

                                                                   and

 

 

                                             OMAGH MEATS LIMITED

                                                                                                                        Defendant.

 

 

                                                               ------------

 

 

 

 

                                                           JUDGMENT

 

 

 

                                                                    OF

 

 

 

                                                        McCOLLUM LJ

 

 

 

                                                               ------------